Law Commons^™

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

Faculty Publications

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Lawyers’ Obligations When Representing Clients With Diminished Capacity, Elissa Germaine

Faculty Publications

(Excerpt)

Lawyers have a significant role to play in protecting clients with diminished capacity from financial exploitation. PIABA members, in particular, see the issue from a unique vantage point – usually after a person with diminished capacity (or a family member or concerned third party) notices a drop in value in his or her brokerage account and approaches the lawyer to help figure out what happened in the account and, if appropriate, to pursue a claim to recover damages. As such, members must understand their own obligations as lawyers to clients with diminished capacity, obligations that apply in the context …

Who Shouldn't Prosecute The Police, Kate Levine

Faculty Publications

The job of prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wakes of the recent killings of Michael Brown and Eric Garner. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This article focuses on the undertheorized but critically important role that conflict of interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked …

Whose Ethics? The Benchmark Problem In Legal Ethics Research, Elizabeth Chambliss

Faculty Publications

How should we interpret differences between junior and senior lawyers’ perceptions of ethicality in the workplace? One theory holds that junior lawyers are more reliable informants; that their perceptions are not yet corrupted by self-interest and the demands of practice and therefore will tend to be closer to universal or ordinary morality. This is the predominant theory in the academic literature on large law firms, which tends to portray large law firms as being in perpetual moral decline. To some extent, this corruption narrative informs all critical legal ethics research.

An alternative theory holds that junior lawyers are inexperienced and/or …

Confidentiality And Claims Of Ineffective Assistance, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column discusses what a defense lawyer should do when called upon to reveal client information in response to an ineffective assistance of counsel claim.

Collaborative Lawyers' Duties To Screen The Appropriateness Of Collaborative Law And Obtain Clients' Informed Consent To Use Collaborative Law, John M. Lande, Forrest Steven Mosten

Faculty Publications

Collaborative Law (CL) is an innovative dispute resolution process that offers significant benefits but also poses significant non-obvious risks. This Article provides a systematic analysis of these possible risks as identified in books written by CL experts, CL practice group websites, social science research, and bar association ethics opinions. In CL, the lawyers and clients sign a "participation agreement" promising to use an interest-based approach to negotiation and fully disclose all relevant information. A key element of CL is the "disqualification agreement" signed by parties (and sometimes by attorneys) which provides that both CL lawyers would be disqualified from representing …

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

Non-Beneficial Pediatric Research And The Best Interest Standard: A Reconciliation, Paul J. Litton

Faculty Publications

Federal efforts beginning in the 1990's have successfully increased pediatric research to improve medical care for all children. Since 1997, the FDA has requested 800 pediatric studies involving 45,000 children. Much of this research is "non-beneficial"; that is, it exposes pediatric subjects to risk even though these children will not benefit from participating in the research. Non-beneficial pediatric research (NBPR) seems, by definition, contrary to the best interests of pediatric subjects, which is why one state supreme court has essentially prohibited it. It also appears that the only plausible rationale for this research is utilitarian, as it risks some children …

Harming Future Persons: Obligations To The Children Of Reproductive Technology, Philip G. Peters Jr.

Faculty Publications

Two paradigms dominate contemporary ethical and legal debate about the risks posed to children who owe their lives to reproductive technology. One asks whether the children have lives so tragic that life itself is harmful. The other approach asks whether children so conceived are likely to enjoy a minimally decent existence. Although the two approaches have quite different analytic foundations, they share one crucial trait. Each concludes that children who owe their lives to reproductive technology are harmed only when that technology causes genuinely catastrophic injuries.Because these conventional paradigms define harmful conduct exclusively by reference to the magnitude of the …

Role Of The Criminal Defense Lawyer In Representing The Mentally Impaired Defendant: Zealous Advocate Or Officer Of The Court, Rodney J. Uphoff

Faculty Publications

This article examines a difficult question in the representation of mentally impaired criminal defendants: should counsel be obligated to inform the court of doubts about a client's competency to stand trial even though doing so may be contrary to the client's wishes or best interests? Professor Rodney J. Uphoff analyzes authorities that impose such an obligation on defense lawyers, including an American Bar Association Criminal Justice Standard and a recent decision of the Wisconsin Supreme Court, State v. Johnson. Uphoff concludes that these authorities needlessly undercut the mentally impaired defendant's right to zealous representation. He proposes an alternative ethical model …